Eduardo Capote is comforted by his wife, Desiree, on the elevator this evening at the Routt County Justice Center in Steamboat Springs shortly after jurors found Eduardo and his brother David not guilty of third-degree assault charges. The jury was deadlocked on Eduardo's second-degree assault charge, and a new trial has been scheduled for May.

Capotes not guilty of 3rd-degree assault

Jury deadlocked on 2nd-degree assault charge for Eduardo Capote, who will be retried

Steamboat Springs  A jury found Eduardo and David Capote not guilty of third-degree assault Wednesday after a day and a half of deliberations, but jurors could not reach a decision about the more serious charge of second-degree assault against Eduardo Capote.

Jurors said the group deadlocked on the final charge, with five jurors saying Eduardo Capote was guilty and seven saying he was not guilty. The jury needed to reach a consensus on the charge.

Attorneys on both sides said they would have renewed vigor for the retrial, scheduled for May 10 to 21.

The men were charged with assault after an altercation in downtown Steamboat Springs on the night of Jan. 1, 2009, with Michael Wesley “Wes” Mottlau, Timothy Mottlau and Richard Lopez. Lopez died as a result of his injuries.

The third-degree assault charges stemmed from David and Eduardo Capote’s altercation with Michael Mottlau, and the second-degree assault charge stemmed from Eduardo Capote’s fight with Lopez.

Lopez’s sister, Mary Ventura, said she was ready for the retrial.

“We’re ready to go again, full force,” she said. “I think the district attorney did a fantastic job.”

Defense attorney Charles Feldmann said he plans to call more expert witnesses and said he expects the retrial to last at least as long as the original, even though there are fewer charges.

“Certainly, it’s not the outcome we had expected or hoped for, but I could see in the jury’s faces that they worked hard in this case,” he said. “It was painful for everyone.”

Fourteenth Judicial District Attorney Elizabeth Oldham said the decision, though not ideal, does not rule out the possibility of conviction.

“It’s better than not guilty,” she said. “We get another chance.”

The jury began deliberations about 1 p.m. Tuesday and went home after 5 p.m. Members resumed at 8:30 a.m. Wednesday and continued until 5 p.m., when the jurors sent a note to the judge stating that they could not reach a decision.

District Judge Shelley Hill asked the jurors twice whether they thought taking more time on the deliberations or going home for the night would help them reach a decision, but jurors shook their heads no. The jurors stood as the forewoman read the two decisions of not guilty to the brothers.

Hill thanked the jurors for their service and excused them from the courtroom. Juror Jordan Dryjanski said tempers sometimes flared during the discussions and that jurors took breaks to defuse the situation.

“We all agreed it was a death, it was horrible, but that was not what we were there to decide,” she said.

Michael Mottlau, who was present for the jury’s announcement, declined to comment on the verdict because he said he likely would be called as a witness at the retrial.

An additional charge of third-degree assault against David and Eduardo Capote for allegations that they fought with Timothy Mottlau was dismissed in the middle of the trial.

The trial

During five days of arguments, eyewitnesses, alleged victims and both Capote brothers took the stand to describe the events of the night.

Witnesses generally agreed that there was a disagreement at the Tap House Sports Grill between the two groups that almost resulted in a fight, but both groups calmed and left the bar.

When they met again at Seventh Street and Lincoln Avenue, the groups began arguing again, sending insults back and forth.

After words were exchanged for a few minutes, the Mottlaus and Lopez reportedly started walking across Seventh Street, away from the Capotes.

What happened next was the root of the case: prosecutors said Eduardo Capote ran into the street and punched Lopez as his group was leaving; defense attorneys said Lopez broke away from his group and ran toward the Capotes, prompting Eduardo Capote to step forward to protect his family. Eduardo Capote was standing with his wife, Desiree Capote; David Capote; and David Capote’s girlfriend, Karen Rodriguez.

Attorneys measured out distances in the courtroom multiple times to try to demonstrate how far apart the groups were at different times during the altercation, according to different witnesses.

Oldham said she didn’t want to give away secrets before the retrial but said that the case would be pared down from the original without David Capote’s charges.

“It simplifies it a bit, but the bulk of evidence was the same for all charges,” she said.

Feldmann said he plans to file several new motions before the retrial, including a request to change the venue from Routt County because of the publicity the case has received.

He said he also plans to introduce more expert witnesses to testify about medical issues, including post-traumatic stress disorder.